Shell v. State

¶1concurring and dissenting.

¶2I concur with those portions of the majority opinion that relate to the handgun offenses, but dissent from the views expressed in Part III B of the opinion, and from the decision to reverse the convictions of malicious destruction of property, because I do not agree that a specific intent to damage property is an essential element of that offense.

¶3The majority concludes that by the conjunctive use of the words “wilfully” and “maliciously” the Legislature necessarily intended the creation of a specific intent offense. I disagree.

¶4The intent historically required as an element of malicious destruction of property is one that may be specific, or may be implied. In such a case, because proof of a specific intent is but an alternative and not an invariable method of proof, voluntary intoxication is not a defense. Nothing in our statute suggests that we should attribute either to the word “wilfully” or “maliciously” a meaning that would *71cause the statutory offense to vary significantly from its common law predecessor.

¶5As the United States Supreme Court has pointed out, “willfull ... is a word of many meanings, its construction often being influenced by its context.” Spies v. United States, 317 U.S. 492, 497, 63 S.Ct. 364, 367, 87 L.Ed. 418 (1943). That Court has also said that the word denotes an act which is intentional rather than accidental, but when used in a criminal statute, it generally means an act done with a bad purpose. When so used, the Court said, something more is required than the doing of the act proscribed by the statute, and an evil motive to accomplish that which the statute condemns becomes a constituent element of the crime. Screws v. United States, 325 U.S. 91, 101, 65 S.Ct. 1031, 1035, 89 L.Ed. 1495 (1945). In Screws, the Court found it necessary to give a very restrictive meaning to wilful, to avoid a constitutional question of vagueness that might otherwise be present in a statute. This Court has said that wilfully is commonly interpreted as meaning “intentionally.” Brown v. State, 285 Md. 469, 475, 403 A.2d 788 (1979).

¶6As used in this statute (Art. 27, § 111), the word “wilful” clearly requires a showing that the act was intentionally done, and was not accidental, nor the product of simple negligence, nor the result of coercion. Assuming that because of its inclusion in a penal statute, the word means more, and requires a showing of an evil intent, or an absence of legal grounds, or an act done without reasonable ground for believing it to be legal, this falls short of requiring proof of a specific intent. At least for purposes of determining when the defense of voluntary intoxication may properly be interposed, we should conclude that a required showing of “evil intent” or intent to do that which is prohibited by law, involves no more than a general intent.

¶7The term “maliciously” is at least as chameleonic as “wilfully,” suffering changes in meaning depending upon the context in which it is used. I am persuaded that its *72intended meaning in the context of this statute is similar to its meaning in the law of homicide. Just as murder may be committed without any express (specific) intent to kill, so also may § 111 be violated without any express intent to cause damage to property. The intent ingredient of malice required to prove second degree murder may be express (an actual intent to kill) or it may be implied by law under certain circumstances. These circumstances include: 1) the presence of an intent to do serious bodily harm, or 2) a killing that occurs in the course of and as a result of an attempt to commit, or the commission of, certain felonies (felony murder), or 3) a killing which results from conduct that represents a wanton1 and wilful disregard of an unreasonable risk to human life (depraved heart). Nothing in the development of the law of malicious mischief suggests that the requisite intent of that crime cannot also be implied. I agree with the conclusion of Professor Perkins, who said:

[T]he element of malice, as the special mental element of malicious mischief, requires either a specific intent to cause the destruction of, or substantial damage to, the property of another, or an act done in wanton and wilful disregard of the plain and strong likelihood of such harm, without any circumstances of justification, excuse or substantial mitigation. Stated in other words: The mens-rea requirement of malicious mischief is a property-endangering state of mind, without justification, excuse or mitigation.

R. Perkins, Criminal Law ch. 4 § 8, at 339 (2d ed. 1969) (emphasis added).

¶8The majority reads Brown v. State, 285 Md. 469, 403 A.2d 788 (1979) and Rosenberg v. State, 164 Md. 473, 165 A. 306 (1933), to compel a contrary result. I do not. Browndid *73not deal with § 111, but dealt with a charge of arson under § 7. The Court held only that “in an arson context”2 a malicious act “is one intended to bring harm to another person.” 285 Md. at 474, 403 A.2d 788. Rosenbergdeals with the removal of a fence post by an adjacent property owner claiming an easement over the way obstructed by the post. The Court held that the evidence of the defendant’s bona fide belief that he had a legal right to remove the obstruction was relevant and should have been admitted. Because malice involves an act done without legal justification, excuse or mitigation, and because an act done under a bona fide claim of right has generally been held to be justified or excused in malicious mischief cases, the Court properly held the evidence was material to the issue of malice.

¶9I therefore disagree with the majority’s conclusion that the offense proscribed by Art. 27, § 111 requires “a deliberate intention to injure the property of another.” Such a specific intent will, of course, suffice, but so too will a wanton and wilful disregard of an obvious likelihood of damage to property. It follows then, that because the crime may be committed by a person harboring no specific intent, voluntary intoxication is not a defense. See Chisley v. State, 202 Md. 87, 106, 95 A.2d 577 (1953), holding that voluntary intoxication will not reduce murder to manslaughter, nor will it excuse the crime.

¶10The evidence in this case was sufficient to support the trial judge’s finding that Shell’s actions involving two telephones were intentional, and not accidental. In the first instance, after being handed a cordless telephone in response to his demand for a telephone, Shell said, “that’s no telephone that’s a radio.” 3 He then snapped the antenna, *74dropped the telephone to the floor and crushed it under foot. In the second instance he grabbed a telephone from a desk and tore its wire from the wall. In each instance the trial judge found that the act was done in wanton and wilful disregard of the plain and strong likelihood of harm to the property, even though Shell may not have been capable of forming a specific intent to cause such damage.

¶11I would affirm the convictions of malicious destruction of property.

¶12I am authorized to state that Chief Judge MURPHY and Judge RODOWSKY agree with the views expressed herein.